Friday, March 31, 2006
The Senate Judiciary Committee has passed and sent on a bill (S. 1768), sponsored by Senator Arlen Specter, that would allow the "televising of Supreme Court proceedings...unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.". An identical bill is before the House Judiciary Committee. An accompanying measure, which Senator Charles Grassley sponsored, would allow cameras in the district and appellate courts. It also passed out of committee. Read more here.
Thursday, March 30, 2006
Borders and Waldenbooks have decided not to carry the April/May issue of Free Inquiry magazine because it will include some of the cartoons that a Danish newspaper published of the Prophet Mohammed last year. According to spokesperson Beth Bingham, Borders is concerned that the issue might implicate the "safety and security" of Borders and Waldenbooks customers. Free Inquiry magazine editor Paul Kurtz responded that the Borders corporate decision "undermines" the First Amendment. Read more here.
Tuesday, March 28, 2006
The Idaho Supreme Court has affirmed a lower court decision that the Senate and House may close legislative committee meetings to the public. The Idaho Press Club had requested a declaratory judgment that closing such meetings violated Article III, section 12 of the Idaho Constitution.
"The Press Club contends that the phrase "business of each house" should be construed to include legislative committees. It argues that because each house utilizes legislative committees in order to function, the work of such committees is included in the phrase "business of each house." There are three problems with this argument.
"First, both houses also utilize the committee of the whole as part of the legislative process. If the "business" of each house was intended to include the work of all committees, then it would also include the committee of the whole, which is a committee. If the word "business" included the work of all committees, then there would have been no reason to expressly include the committee of the whole within the provisions of Article III, [section] 12. The reference to the committee of the whole would be mere surplusage. We should avoid an interpretation which would render terms of a constitution mere surplusage....
"Second, adopting the Press Club's definition of "business" would create an inconsistency. Article III, [section] 10 states, "A majority of each house shall constitute a quorum to do business." If legislative committees are included within the "business" of each house, then a majority of each house would have to be present at each meeting of a legislative committee because such committee meetings would constitute doing the business of the house. Nobody contends that a majority of the members of each house are required to be present at meetings of legislative committees....
"Third, the argument is contrary to the history surrounding the adoption of Article III, [section] 12. The version originally approved...permitted secret legislative sessions to enact legislation....Throughout the debate concerning Article III, [section] 12, there was no discussion regarding whether legislative committee meetings should be open or closed to the public. The delegates quoted were arguing against permitting secret sessions of the legislature, not against closing meetings of legislative committees. To apply their arguments to an issue they were not even addressing is simply putting words in their mouths....
"...[A]t the time of the Idaho Constitutional Convention, legislative committee meetings were typically closed to the public. There is no reason to believe that the delegates were unaware of that fact. Had they intended to prohibt the legislature from closing all such committee meetings, one of the delegates would certainly have mentioned that issue....
"The Press Club and amicus curiae also present various policy arguments as to why legislative committee meetings should always be open. We cannot use policy arguments to give a constitutional provision a meaning that is not consistent with its wording...."
"Finally, amicus curiae argue that Article I, [section 10], of the Constitution requires that legislative committee meetings be open. They rely on the provision stating, "THe people have the right...to instruct their representatives...." According to amicus curiae, the right to instruct representatives must include the right to attend legislative committee meetings....Article I, [section] 10, does not specify the manner in which the people have the right to instruct their representatives. It does not, by its terms, purport to require that legislative committee meetings be open. Even if we were to conclude that its provisions conflicted with those of Article III, [section 12], the latter, being specific, would prevail."
Read the entire opinion here.
In In re Subpoena Directed to Andrew Maykuth, parties to the action Bowoto v. Chevron Texaco Corp., No. 99-2506, attempted to compel the deposition of Andrew Maykuth, a Philadelphia Inquirer reporter, who had written about the Bowoto situation. Maykuth attempted to quash the subpoena, arguing that it violated "his rights under the reporter's privilege: and ...[was] overly broad and unduly burdensome." While refusing the request, Judge O'Neill, U. S. District Court, Eastern District of Pennsylvania, engaged in the following analysis and limited Maykuth's testimony as follows.
"With respect to the reporter's privilege, Maykuth argues that Chevron's arguments...do not meet the three part test enunciated by the Court of Appeals in Riley v. City of Chester...The analysis of these three criteria is made on a case by case basis...Chevron attempted to verify the statements made in the article by deposing plaintiffs, but [they] repeatedly denied making such statements...Chevron cannot verify that plaintiffs made these statements through any source others than Maykuth because he appears to be the only person to whom plaintiffs allegedly made these statements....The article itself, although self authenticating for purposes of admitting the evidence...is not sufficient to verify or prove false the statements recounted by Maykuth....Chevron also satisfies the third criterion: Maykuth's verification evidence is relevant, material, and "crucial" to Chevron's defense because the truth of these statements and whether they were actually said go directly to the heart of Bowoto action....Chevron's need for this information goes beyond a desire to impeach the testimony of these two plaintiffs; this information strikes at the very heart of plaintiffs' case....However, I agree with Maykuth that the breadth of plaintiffs' cross examination questions, Chevron's redirect, and plaintiffs' recross is overbroad and should be limited to verifying whether plaintiffs made the quoted statements...."
Read the entire memorandum and order here.
Monday, March 27, 2006
The Washington Post's new blogger, Ben Domenech, has departed after only three days on the job. The Guardian reports that the new recruit was caught at plagiarism in previous work. Read more here. Read Post editor Jim Brady's note on the subject here (registration may be required--free).
Friday, March 24, 2006
Fourth Circuit Grants In Part, Denies In Part Request for Access to Exhibits, Other Materials In Moussaoui Case
The Associated Press and several other news organizations appealed the district court's order denying access to exhibits entered into evidence "until the trial proceedings are completed, at which time requests for these materials will be considered" (United States v. Moussaoui (E. D. Va. Feb. 14, 2006)) as well as another order of the same date which sealed transcripts of bench conferences.
The 4th Circuit has held that with respect to petitioners' argument that the February 14th orders are "facially invalid because they were issued without prior notice and an opportunity to be heard", "any defects that existed at the time of the February 14 orders have been cured by subsequent proceedings." With respect to the documentary exhibits, the appellate court held, "[w]e have little difficulty concluding that the district court did not abuse its discretion in refusing to provide access to items that have been admitted into evidence but that have not yet been published to the jury, or that have been published only in part. We therefore deny the petition for a writ of mandamus to the extent that Petitioners seek access to any documentary exhibit that falls into this category..."
With regard to documentary exhibits "that have been admitted into evidence and fully published to the jury, we conclude that the district court abused its discretion in denying access....As noted above, the district court identified two concerns in disallowing any contemporaneous access to exhibits: juror taint and administrative difficulties. The concern for juror taint is not well taken regarding exhibits that have been fully published to the jury because it is unlikely that simply seeing the evidence again through a media publication will endanger Moussaoui's right to a fair trial....The administrative concerns of the district court are also insufficient...We do not doubt that the administrative burdens facing the district court are enormous....However...there are ways to ease the incremental administrative burdens that would arise from accommodating...First Amendment right of access, such as providing access to one copy of an exhibit...."
WIth regard to access to transcripts of bench conferences, the Fourth Circuit held that "Petitioners' contention that they are entitled to transcripts...is without merit. The Supreme Court has indicated that the existence of a First Amendment right to observe trial proceedings does not necessarily extend to all parts of a trial....And, bench conferences traditionally are not open to the public....Petitioners maintain, however, that they do have a First Amendment right to review transcripts of bench conferences as part of the proceedings that are published daily....Assuming that there is a constitutional or common law interest in eventual release of transcripts...this right is amply satisfied by prompt post-trial release of transcripts....We therefore deny Petitioners' mandamus petition...."
Read the entire ruling here.
Thursday, March 23, 2006
Since the rules over re-broadcast of programming changed last year, the UK networks have been unable to agree on when and in what media programs can be repeated. Particularly at issue are when programs can be broadcast on independent channels, the internet and overseas. Ofcom, the UK's media regulatory agency, had set March 21 of this year as the date by which affected parties should propose guidelines but some networks missed that date, including the BBC and ITV. Now, arguments are emerging over whether the viewing public expects free repeats of programming during a specific period ("a catchup window") or whether it understands the concept of some kind of pay-for-view (a download).
The UK film industry may soon be eligible for more tax credits under new legislation to be introduced this summer. Lower budget films will get subsidies and up to a 50 percent tax credit if they make money at the box office. Read more in a BBC story here.
Tuesday, March 21, 2006
The judge presiding over The Da Vinci Code copyright infringement case has indicated that he may take until just before Easter to hand down his decision now that the lawyers have made their closing statements. Both Dan Brown, who wrote The Da Vinci Code and Michael Baigent, who with Richard Leigh and another man wrote The Holy Blood and the Holy Grail, which Brown is accused of plagiarizing, gave evidence at trial. At risk besides questions of copyright law and the rights of the authors in HBHG is the pending release of the film made from The Da Vinci Code, scheduled to hit theaters in May. Read more here and here.
Patrick Ryan, University of Colorado at Boulder, has published "The Future of the ITU and its Standard-Setting Functions in Spectrum Management" in Standards Edge: Future Generation, edited by Sherrie Bolin, published by Sheridan Books in 2005. Here is the abstract.
One of the most important standard-setting organizations in the world is the International Telecommunications Union (ITU), an arm of the United Nations based in Geneva, Switzerland. This chapter will discuss the role of and process for standardization in the ITU with respect to spectrum and satellite management - two aspects that will become increasingly important for the Future Generation of Information and Communications Technology. In particular, we will focus on the ITU-R, the ITU organization that deals with radio and spectrum management. We will consider the role of the ITU in broader terms through its increasingly prominent role in the standardization of spectrum management matters related to satellites. In conclusion, we will see the ITU's role in spectrum management has been quite effective with regards to satellite and space law. However, we will also see that ITU's future ability to be effective in this area will depend on: (1) the organization's willingness to distance itself from the centralized planning notions that arise from its command-and-control approach to spectrum allocation and allotment and (2) an ensuing increased commitment by the United States to the ITU's processes.
Download the essay here from SSRN.
Natali Helberger, Institute for Information Law, University of Amsterdam, has published "The `Right to Information' and Digital Broadcasting--About Monsters, Invisible Men, and the Future of European Broadcasting Regulation" in volume 17 of the Entertainment Law Review. Here is the abstract.
As a result of modern content management technologies, individualisation, differentiation and conditioned access step into the place of traditional models of broadcasting content. In the light of these developments, the article provides a critical analysis of the proposals that were made to revise the Television Without Frontiers Directive and to protect the right to information of the broadcasting audience. The article will show that instead of modernizing the European broadcasting framework the proposals are focused on maintaining the status quo of an analogue past. It will make an argument in favor of a more viewer-oriented approach.
It is also available from SSRN.
Jane Ginsburg, Columbia University School of Law, and Sam Ricketson, University of Melbourne Faculty of Law, have published "Inducers and Authorisers: A Comparison of the U. S. Supreme Court's Grokster's Decision and the Australian Federal Court's KaZaa Ruling," as the University of Melbourne's Legal Studies Research Paper no. 144 and in volume 11 of Media and Arts Law Review. Here is the abstract.
On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors’ rights and the advent of new technologies, particularly in relation to peer-to-peer networks.
In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular ‘file-sharing’ networks, Grokster and Streamcast (dba Morpheus) should be held liable for facilitating the commission of massive amounts of copyright infringement by the end-users who employed the defendants’ peer-to-peer (P2P) software to copy and redistribute films and sound recordings to each others’ hard drives. The Court reversed the Ninth Circuit’s grant of summary judgment for defendants, holding that the technology entrepreneurs could be held liable for ‘actively inducing’ the end-users’ acts of infringement. A similar decision was reached in Australia with respect to the KaZaa software, albeit in this proceeding the court had the advantage of much greater factual material as to the operation of the KaZaa system than did the US Supreme Court in Grokster. Nonetheless, both cases illustrate the difficulties that arise as consumer-wielded digital media increasingly supplant the traditional intermediaries who made copyrighted works available to the public (and who traditionally were the targets of copyright enforcement) and as courts struggle to balance meaningful protection for works of authorship against the progress of technological innovation. For some, the weakening of copyright control is the necessary price to pay for technological advancement. For others, authors’ ability to maintain exclusive rights remains a cornerstone of any copyright system as it adapts to accommodate new modes of exploitation.
Grokster is the latest, and most important, in a series of US decisions to address that balance by articulating the liability of an enterprise which does not itself commit copyright infringement, but instead makes it possible for others to infringe. To appreciate the Supreme Court’s analysis, it helps to set the case in both domestic and international doctrinal context. Because unauthorized P2P distribution of copyrighted works extends well beyond the US, copyright owners have pursued legal actions in other countries, including the Netherlands and Australia. While the Australian case still awaits full appellate consideration, it provides a useful example of how another common law jurisdiction (Australia) analyses the liability of those who provide goods or services to facilitate infringement. In this regard, it is also useful to consider what obligations, if any, exist at the international level with respect to the liability of infringement-facilitators. We will conclude with some (perhaps foolhardy) forecasts for the post-Grokster/KaZaa future of copyright enforcement.
It is also available through SSRN here.
Sunday, March 19, 2006
Novelist and physician Michael Crichton comments amusingly and pointedly on the Laboratory Corporation of America v. Metabolite Labs case in "This Essay Breaks the Law", in today's New York Times Magazine.
Friday, March 17, 2006
Lewis Libby's lawyers have subpoenaed the New York Times and its former reporter Judith Miller, seeking information that could be helpful in Libby's defense against charges that he lied to a federal grand jury. Miller, who served 85 days in jail last year for contempt of court for refusing to give up Libby's name to a grand jury, is likely to try to resist giving up this requested information as well, says her lawyer, Robert Bennett. Libby's attorneys have also served a subpoena on NBC's Tim Russert. Read more here and here.
Thursday, March 16, 2006
The European Union's Court of First Instance has upheld the EU's design and trademark office's decision to deny the Austrian publisher Telefon & Buch Verlagsgesellschaft the right to trademark the phrase "Weisse Seiten" (White Pages), saying it no longer has a specific enough meaning. The Court said "White Pages" now generally connotes residential directories. Read more here.
In an effort to clean up a backlog of viewer complaints, the FCC has issued numerous decisions this week. It has posted additional Notices of Apparent Liability and Memoranda Opinions and Orders here. Among the broadcasts which violated FCC rules are the "Pool Party" episode of "The Surreal Life 2" and "Con el corazon en la mano".
The FCC found that performer Cher's use of the "f" word during the December 9, 2002 broadcast of the Billboard Music Awards on Fox was "explicit and shocking and gratuitous" the broadcast itself was "patently offensive under contemporary community standards for the broadcast medium and thus apparently indecent. Technological advances have made it possible to block the broadcast of offensive words without disproportionately disrupting a speaker's message. Fox could have avoided the indecency violation here by delaying the broadcast for a period of time sufficient to ensure that all offending words were blocked....By broadcasting this material, the station apparently violated the prohibitions...and the Commission's rules against broadcast indecency....The "F-Word" is a vulgar sexual term so grossly offensive to members of the public that it amounts to a nuisance and is presumptively profane. The "F-Word" is one of the offensive words in the English language, the broadcast of which is likely to shock the viewer and disturb the peace and quiet of the home. Consistent with our decisions in the Golden Globe Awards Order, we find here that the use of the "F-Word" in the program at issue here apparently violated 18 U.S.C. [sec] 1464's prohibition's of the broadcast of "profane" language....In the instant case, we find that the Fox Network affiliate...consciously...broadcast the program....The gratuitous use of indecent and profane language...ordinarily would warrant a forfeiture order....Nonetheless, we recognize that our precedent at the time...indicated that the Commission would not take enforcement action against isolated use of expletives. Accordingly, we find that no forfeiture is warranted...."
The agency analyzed complaints against Nicole Ritchie's use of expletives during the broadcast of the 2003 Billboard Music Awards similarly.
The agency also ruled on many other viewer complaints of indecency or profanity on the airwaves, among them that episodes of "Will and Grace," "Two and a Half Men," "The Oprah Winfrey Show," "The Today Show," "8 Simple Rules," "The Simpsons," and the Green Bay Packers v. Minnesota Vikings game (January 9, 2005) depicted lewdness or obscenity. It found no violation of FCC regulations in any of these cases.
The FCC has responded to viewer complaints of indecency in the case of an episode of the CBS series "Without a Trace". The agency found that the CBS broadcast of the December 2004 episode of "Our Sons and Daughters" was the broadcast of "material graphically depicting teenage boys and girls participating in a sexual orgy. Based upon our review of the facts and circumstances of this case, we conclude the the licensees...are apparently liable for a monetary forfeiture in the amount of $32,500 per station for broadcasting indecent material...."
The FCC went on to complete its analysis, and discussed the content of the programming at length, explaining that "while no nudity is shown, it is clear...that the scene depicts numerous sexual activities...We also find that the material is, in the context presented here, patently offensive as measured by contemporary community standards for the broadcast medium.....[t]he scene is explicit and graphic. The material contains numerous depictions of sexual conduct among teenagers that are portrayed in such a manner that a child watching the program could easily discern that the teenagers shown...were engaging in sexual activities, including apparent intercourse. The background sounds, which include moaning, add to the graphic and explicit sexual nature....The scene is not shot as clinical or educational material....Next, although not dispositive, we find it relevant that the broadcast dwells on and repeatedly depicts the sexual material, the second principal factor in our analysis....As for the third factor, we find that the complained-of material is pandering, titillating, and shocking to the audience. The explicit and length nature of the depictions...goes well beyond what the story line could reasonably be said to require....In sum, because the scene is explicit, dwells upon sexual material, and is shocking and titillating, we conclude that the broadcast of the material...is patently offensive under contemporary community standards...." The total fine imposed on CBS and its licensees will amount to $3.6 million.
Read the FCC's entire notice here.
Wednesday, March 15, 2006
The Daily Illini's board of directors has fired its student editor, Acton H. Gorton, for violating "Daily Illini policies about thoughtful discussion of and preparation for the publication of inflammatory material" in deciding to publish those now infamous Danish cartoons of the Prophet Muhammad. Gorton and another of the paper's editors were originally suspended for their actions in publishing the cartoons. Gorton defended his decision by saying the publication was "newsworthy" and that he asked others for advice before choosing to republish the cartoons. Gorton says he plans to sue over the firing. Read more on the suspension here and the firing here. Read Gorton's February 9, 2006 editorial about the cartoons here.